Proffessional liabilities of conveyancers

Legal tip 376. Proffessional liabilities of conveyancers 
25 October 2010 @ 16:05 

What about accountability of the judiciary Maria?

Should they not be made accountable for the consequences that directly result from uncacceptable delays in handing down judgements, or processing enforcement orders within reasonable time limits? First instance judgements are being consistently compromised by these delays and this is making a mockery of the justice system.

Are there no procedures in place to make them accountable? Where is the consumer protection for this growing problem?

Yes, there are procedures in place for making Courts accountable of damages arised from undue delays.

In order to guarantee the right of citizens to trial without undue delays (as per provision 24.2 of the Spanish Constitution), the system has provided two mechanisms.

Provision 24.2 of the Spanish Constitution says that all persons have a right to a public trial without undue delays and with all the guarantees
There are two main tools available to the citizens who suffer undue delays in trials:  
1)    Complaints within the judicial procedure and use of the procedure itself for promoting and speeding it.
2)    Money Compensation for any damage that, in the estate of the claimer, has caused the undue delay.
The determination of compensation (and its quantum) is made through a special administrative procedure that is processed and solved by the Ministry of Justice.

The most important aspect is to prove an actual damage which can be valued in economic terms and be determined.

The right to claim this sort of compensation prescribes within a year after the production of the delay or since this delay expressed its harmful effects.

 

Thank you Maria, but isn't it ironic that they place time constraints (i.e. within a year after the production of the delay) on these complaint/compensation procedures for them to qualify, and yet no similar time constraints appear to be in place for appeals/enforcement etc to be concluded ?

At what point would they consider for instance that a case had reached its ultimate conclusion for it to qualify, and therefore be allowed to prove that the continual delays had significantly compromised a client's rightful return of monies according to first instance judgements?

If I understand correctly then Goodstitch appears to be in exactly this situation where the developer went into administration while he had to sit and wait for 2 years for his enforcement to be enacted. Would he have had a qualifying case for compensation under these circumstances?  And more importantly would he have qualified for a quantum according to his first instance judgement? In fact does he still have this option at his disposal? Does he have to wait until the administration process is completed before he could prove that he had not been suitably recompensed as per his first instance judgement?

How many have experienced this problem, but because they have not been advised by their legal team of these rights, they then fall outside the remit for compensation? Again the onus falls on the lawyer to identify ALL possible means of recouping their monies, and this appears to be one legal avenue that I have never heard of anyone following (or succeeding) as a means for return of monies. I wonder if that is because they are all waiting for a final conclusion to their cases??????

We have all been identifying these issues relating to significant delays now for some considerable time, so I'm surprised why no-one has advised of this route for compensation before now? Is it because it is yet another unknown quantity within the justice system, or were many lawyers unaware of this possible route for compensation? Just as important, do you see this as a serious realistic means of ensuring that the justice administration system is brought to account in cases such as Goodstich's?

Also what would be classed as an undue delay, one year, two years, five year, ten years? Is the wording of this suitably  vague so as to be very difficult to prove? I would be interested to know if anyone has succeeded in this action........

Is it only considered a last resort procedure when all other legal avenues have been exhausted? Would ALL legal costs incurred up to that point be also eligible for compensation? Might this prove cost prohibitive in reality if legal fees are not compensated?

 Do you see this as a serious credible means of ensuring that the justice administration system is ultimately brought to account for these unacceptable delays that are increasingly compromising clients?

Thank you again for your advice Maria, but as you can see, there are still many unanswered questions.

 Ads: Your post would give for an excellent class in Law School on this topic :)

Every case would deserve particular consideration

Best,

Maria

 Ads: Your post would give for an excellent class in Law School on this topic :)

Every case would deserve particular consideration

Best,

Maria

Agreed Maria, the devil is always in the detail with these cases.........  

On a serious note however will we ever make the justice departments accountable for their lack of justice, because for many it's a downward spiral as more and more purchasers chase their rightful return of monies as per successful judgements. I was hoping that  if they were made to pay compensation for their inadequate administration that it would act as an incentive to correct the abuses.It would no longer be in their interests to continue with this maladministration. All other legal routes appear to overload the system further and only accentuate the problem....... so I would be interested to know what is your ( and your legal colleagues') solution to these delays that are causing such hardship?

Maria, do you have no answer to this serious problem?

There are many who are becoming increasing disillusioned with taking legal action, if all that happens when you win your case is that it sits in an every increasing queue, as those who have lost their case play the legal game of appeal in full knowledge that the appeal or enforcement is unlikely to be resolved under the present conditions. ENOUGH. We want some action from you as good legal professionals to be much more pro-active in resolving the issue relating to delays. I repeat there is little point in winning a case if we cannot get the appeals/enforcement procedures etc resolved............

Instead of suggesting a class in Law School, it would be far more practical to identify a realistic means of addressing this issue and ensure that we obtain the same prescribed rights as those you have just identified in your recent posting, i.e. a one year time period. If time constraints can be prescribed to the justice department themselves then we too should have similar rights.

Until such time as we see legal professionals and their theories resulting in actual return of monies, the perception by all will be that this is just a theoretical exercise.

Please take this seriously, as good legal professionals will start to lose credibility and your profession will suffer as a consequence. 

 Well... I do not know what else I can add. Of course, anyone who can prove an effective damage connested to undue delays of the administration of justice can go and ask for compensation.

We will be of course happy to help with this. If being well organised by a volunteer, even by a symbolic fee. I can prepare a data request to fill in and documents required to be added and will be completely pleased to bring whatever claims are neccessary before the administration of justice. No problem at all. Better said... it is one of my obligations as a lawyer.

I do hope the answer is satisfactory now :)

Thank you your response on this Maria however this does not unfortunately address the requirement for time constraints to be placed on EACH legal process in the long chain of procedures. Surely the legal profession should be forcefully lobbying for change in this regard?.

The question still remains is this route for compensation against the justice department purely a last resort after all legal procedures have been exhausted? For instance,would this only apply after the outcome following insolvency proceedings? How does this take account of developers illegally asset stripping in the interim, during the long delays that a client endures?

 For these cases, the Spanish legal order veru rightly stablished in 1968 the legal obligations of Bank Guarantees/Insurance Policies and  banks where money is deposited´s  obligations to ensure that these Guarantees existed. That is the way to restore many current unjustices and unbalances 

I understand that Maria, but we are still left with the problem relating to court delays and delays affecting judicial resolutions following appeals....... for instance if the Bank appeals on a case win then you would still have to wait for an indefinite period before judgement is enacted. Unfortunately there is no accountability under these circumstances for justice to prevail and far too many case wins are not resulting in return of monies as we speak......

We need time constraints in place on these legal procedures before anyone can feel confident in achieving return of their monies under these circumstances. So it's in everyone's interest for this problem to be resolved as soon as possible.

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this is where the spanish justice system becomes a farce in my opinion. It just can't be called justice when obvious basic matters of right and wrong aren't adhered to by those we have to trust. Someone is obviously responsible for the delays that so often ruin the chance of 'real' justice. If that someone is not bought to book instantly!!, then everything that follows is further injustice to the victim, and where do they go then????.  With due respect to Maria, she keeps informing us of law and procedure, but if those responsible for administering those laws and procedures are not are not doing their job properly or consistantly, then the risk of trusting those people is just to great  to contemplate for many already cheated.  When I posted that I might consider the 'ley 57/58 route,'  the reply's I got virtually said   ''don't bother' , the risk is too great, however much you are in the right''.    What does that say?, well it tells me that despite all the good work Maria is doing and the odd case where money is returned, the justice system just can't be trusted to do right by those so needing of  fast, honest and correct judgement???. Until the rot is cut out from the very top, then everthing underneath will remain at best inconsistant and untrustworthy.

Maria,

Goodstich is voicing an opinion that is becoming increasingly recognised by all too many innocent people affected by these delays and injustices, which is exactly why I was hoping that legal professionals would recognise the seriousness of this issue and be as proactive as possible in striving for reform.

We need time constraints in place on all these legal procedures ASAP for there to be any accountability. After all, the justice department has recognised a need for time constraints for their own protection on complaint procedures, so we should have similar rights also. It really is a disgrace and undoes all the good work being done by legal professionals if judgements according to case wins are not seen to be enacted swiftly and fairly. The whole procedure relating to appeals (and enforcements) is being abused, and everyone knows this to be the case.

It is essential to us all, clients and legal professionals alike, to get this debated and reformed ASAP.

 I respect your opinion and to that sort of things I do thing the best way ahead is to sign Keith´s petition

Yes certainly sign Keith's petition, no problem with that, in fact it's essential, but lawyers have to do their bit also to effect change from within, to voice their opinions re these ongoing abuses and their effect on their profession and their clients, otherwise it will be perceived with cynical eyes......

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I noticed Maria's reply to you was that she 'respects' your opinion, not 'agree's' with it. Perhaps there lies one of the biggest obstacles to progress? If those good lawyers like Maria are not quite seeing things the way we are, with regards to just how useless the so called justice system is for so many people, then who is?, apart from the victims of those who's job it is to administer 'real' justice.

I think if enough lawyers in Spain got together on this, they would have the knowledge and power to take action against those who should be administering 'real' justice in the crucial time frame, but who clearly feel they are above the laws of 'right and wrong' by often doing far to little far to late, and then expecting their victims to accept that failure or start a whole new case for justice.

Clearly, the laws are not working, and that's not opinion, but fact backed up by the very good petitions. So can a lawyer really do a good job working within a system that has failed so many, however good that lawyer is?.  I don't think so, because if they could then people like myself and many others could feel confident that the fact they have been so clearly wronged would be recognised by those who administer 'real' justice, and the appropriate action taken to ensure I don't just win a hollow victory in court after years of fighting, but actually get my life's savings returned to me.

Until petitions (or better still, some sort of help or action from Spain's own legal experts with evidence from the petitions) force change to the system, then the fight for 'real' justice will continue to be a fairly hopeless gamble for many.

 Goodstich: Yes, once we gather all those personal testimonies through petitions like Keith, lawyers will have a great tool tp be presented before the General Council of Judicial Power.

We present our claims to them, out of information from our own clients´s files on a regular basis. I am sure many lawyers in Spain do the same too.

As said, we ara available to help Keith  for any specific help on this before the Council of Judicial Power and Ministry of Justice once enough testimonials are gathered.              

Maria, what information are you gathering from these claims that you feedback to the GCJP? Are they related to delays in the legal system and have you won compensation for your clients via this route to date?

So far, we send a claim to the CGPJ every time we detect a delay in a procedure. No compensation action has been started so far.